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The solicitor general had an interesting morning. He argued before the Supreme Court's nine justices that Obamacare's individual mandate isn't a "tax"—even though he'll argue tomorrow that the mandate is a "tax." And then the government's top litigator invoked the possibility of incompetent government litigators as a reason to reject an argument raised by the plaintiffs

Welcome to the Supreme Court's review of Obamacare. One day down, two more to go.

While the public is focused primarily on how the Court will determine the constitutionality of the mandate, that issue won't be considered until tomorrow. Today, the justices faced a preliminary question: does the Court have power to hear this case at all? Or is the case barred by the Anti-Injunction Act?

The Anti-Injunction Act, a federal law dating back to 1867, limits taxpayers' ability to use the federal courts to block federal income tax assessments. The Act states, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person," except where specifically authorized by law. The upshot of that requirement, and the related laws, is that if a taxpayer wants to dispute a tax, then he must either file suit in the U.S. Tax Court, or pay the tax and sue for a refund in a U.S. District Court or the U.S. Court of Claims. In this case, the plaintiffs challenging Obamacare accepted neither of those options; rather than waiting a few years to receive income tax assessments enforcing the mandate, they preemptively filed suit in U.S. District Court. And so the question is, does the Anti-Injunction Act block the suit?

More by Adam J. White

As it happens, the plaintiffs and the government are in rare agreement on this issue: both sides argue that the Act does not preclude the Court from hearing the lawsuit. (The government long ago took the opposite side invoking the Act as a bar against the suit, but later changed its mind.) But because the Court wants to make sure that this jurisdictional issue is fully aired and thoroughly argued, the justices appointed a veteran Supreme Court litigator to adopt this orphaned issue.

That lawyer, Robert Long, argued that the mandate is a "tax" for purposes of the Anti-Injunction Act (and thus this litigation must be dismissed), because the mandate is integrated into the tax code for purposes of collection. And even if the mandate is not itself a "tax," Long argued, Congress still wanted the Anti-Injunction Act to apply, because Obamacare provides that the penalty enforcing the individual mandate "shall be assessed and collected" by the treasury secretary "in the same manner as an assessable penalty under" the tax code.

But not a single justice seemed to agree that the Anti-Injunction Act bars this case. Instead, they seemed to agree that the suit can go forward, for one of two reasons:

First, Chief Justice Roberts seemed to conclude that even if the Anti-Injunction Act was intended to apply to this sort of suit, the government lawfully waived that requirement. (In legal parlance, this view is that the Act is not "jurisdictional.")

Second, Justices Breyer and Ginsburg seemed to conclude that the Act does not bar this type of suit anyway. That position would free the Court from having to decide whether the Act is waivable in all cases—although Justice Breyer strongly indicated his belief that the Act is not waivable.

It will be interesting to see which route the justices choose. On the one hand, the easiest decision, under existing case law, seems to be that the Anti-Injunction Act is waivable in all cases. But that would be a very broad decision, implicating all manner of tax disputes. The narrower option, therefore, would be to rule that Congress did not clearly intend the Anti-Injunction Act to bar this type of constitutional challenge to the Obamacare mandate, either because of the way it drafted the Anti-Injunction Act long ago or because of the way it drafted Obamacare two years ago.

Perhaps Justice Scalia found the easiest way out: At today’s oral argument, he invoked the general rule that Congress must speak clearly when trying to limit jurisdiction. That presumption in favor of judicial review could be decisive in a decision holding that the Anti-Injunction Act does not bar the challenge to Obamacare, given that Obamacare's provisions seem insufficiently clear on this issue.